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In re I. C.

Court of Appeals of Oregon

October 9, 2019

In the Matter of I. C., a Child.
v.
K. S. W., Appellant. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, In the Matter of K. B. C., a Child. DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,
v.
K. S. W., Appellant.

          Submitted July 17, 2019

          Washington County Circuit Court J150626, J150629 Petition Number J150625M; Michele C. Rini, Judge pro tempore.

          Shannon Storey, Chief Defender, Juvenile Appellate Section, and Shannon Flowers, Deputy Public Defender, Office of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, fled the brief for respondent.

         [299 Or.App. 669] Before Hadlock, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary: Father appeals judgments establishing temporary guardianships over his two children who are enrolled members of the Confederated Tribes of the Siletz Indians. Father argues that the Department of Human Services (DHS) failed to prove, as is required under the Indian Child Welfare Act (ICWA), 25 USC §§ 1901-63, that it had made "active efforts" to provide services to prevent the breakup of the Indian family and that those efforts failed. DHS responds that the juvenile court had made the necessary "active efforts" findings when it changed the children's permanency plans from reunification to guardianship, and that it did not need to make the findings again when it established the guardianships. Held: The juvenile court did not err in establishing the guardianships over both children. Under Dept. of Human Services v. J. G., 260 Or.App. 500, 317 P.3d 936 (2017), the juvenile court was not required to make a new "active efforts" finding when it actually ordered the guardianships, because the court had made that finding at a prior permanency hearing where it approved the placements.

         [299 Or.App. 670] EGAN, C. J.

         This consolidated juvenile dependency case involves a father and two children who are enrolled members of the Confederated Tribes of the Siletz Indians. Under the Indian Child Welfare Act (ICWA), 25 USC §§ 1901-1963, involuntary child custody proceedings involving Indian children must comply with certain requirements. Among those is a requirement that any party seeking to effect a foster care placement of an Indian child shall satisfy the court that "active efforts" have been made to provide services to prevent the breakup of the Indian family, and that those efforts have failed. 25 USC § 1912(d). Relying on that section of ICWA, father appeals the judgments establishing temporary guardianships over his two children under ORS 419B.366. He argues that the Department of Human Services (DHS) failed to prove that it had made "active efforts," and, thus, that the juvenile court erred in establishing guardianships over the children. DHS responds that father's argument fails because the juvenile court made the necessary "active efforts" findings when it changed the children's permanency plans from reunification to guardianship, and that it did not need to make the findings again when it established the guardianships. For the reasons that follow, we agree with DHS that, under Dept. of Human Services v. J. G., 260 Or.App. 500, 317 P.3d 936 (2014), the juvenile court did not err. Accordingly, we affirm.

         We review a juvenile court's legal conclusions for errors of law and are bound by its findings of historical fact if there is any evidence in the record to support them. Dept. of Human Services v. N. S., 246 Or.App. 341, 344, 265 P.3d 792 (2011), rev den, 351 Or. 586 (2012). Whether DHS satisfied ICWA's "active efforts" requirement is a question of law. J. G., 260 Or.App. at 504. The facts in this case are largely undisputed, and we present only those relevant for our review.

         In 2006, mother gave birth to I. Father did not have consistent contact with I, except for in 2014 when he lived with mother and I "on and off for about four months." In July of 2015, mother gave birth to K. Father asserted that he was K's biological father, but he did not have much contact [299 Or.App. 671] with either child. About three months later, DHS removed both I and K from mother's care, placed them in foster care, and filed petitions alleging that they were within the court's dependency jurisdiction.

         In November 2015, the juvenile court ruled that both I and K were within its dependency jurisdiction. One of the bases for the court's ruling with regard to I was that father was I's "biological and legal father," and that he was "incarcerated and unavailable to parent." The court later ruled that there were additional bases for its dependency jurisdiction over I, namely, father's involvement in criminal activities and pattern of domestic violence. Regarding K, the court did not address any jurisdictional bases concerning father because he had not been determined to be K's legal father.

         In September 2017, the court changed the permanency plans for both I and K from reunification to guardianship. At that hearing, the court found that DHS had made "active efforts" to reunify the family in accordance with ICWA.

         In April 2018, DHS filed an amended petition with regard to K, alleging jurisdictional bases as to father, including that father is the biological father of K. Then, in May 2018, the court entered a new jurisdictional judgment. It determined that K was within its dependency jurisdiction as to father on the bases that father was indeed K's "biological father" and due to his "current history of residential instability," his "pattern of domestic violence and violent behavior," his "aware[ness] of*** the [jurisdictional bases] regarding mother," and his failure to "engage in the ordered services in order to gain custody." The court also found that DHS had made the necessary active efforts to try to make it possible for K to return home and it continued K's current permanency plan of guardianship.

         In July 2018, DHS filed motions to establish guardianships over I and K, and the trial court held a hearing on those motions. The court ultimately entered judgments establishing ...


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